Another Case Against GCHQ Filed At The European Court Of Human Rights; Could Overturn UK's Main Snooping Law
from the pressure-keeps-building dept
Just last week we wrote about the growing number of legal challenges to GCHQ spying. Now here’s another one, from The Bureau of Investigative Journalism, which is concerned about how blanket surveillance threatens the workings of a free press:
The Bureau of Investigative Journalism is asking a European court to rule on whether UK legislation properly protects journalists’ sources and communications from government scrutiny and mass surveillance.
That’s an issue because GCHQ’s approach of routinely collecting all communications for detailed analysis inevitably means that some data involving journalists will be swept up. As the lawyer Gavin Millar explains:
No one knows anything about what GCHQ does with the journalistic information it pulls in. This is because, startlingly, neither the legislation nor government guidance about its use says anything at all about this.
But it is inevitable that some of GCHQ’s minute analysis of the data will be giving it selective access to confidential journalistic material and identifying sources. There is already much evidence that law enforcement agencies increasingly seek to access such information for their own purposes. It is an easy way of advancing their investigations. It can help to identify and deal with embarrassing whistleblowers and can forewarn of awkward stories in the offing. The same is true for the security and intelligence agencies.
Fortunately, Articles 8 and 10 of the European Convention on Human Rights give strong protection to the right to privacy and to freedom of expression. As Millar explains, in earlier judgments the European Court of Human Rights (ECHR) has made it clear that:
this Article 10 right can only be overridden by an order of a judge. And the journalist must first have the opportunity to argue before the court that there is no competing public interest which makes such an order necessary. The law under the Convention is quite clear. Covert state surveillance and accessing of journalistic information cannot be used to circumvent these important rights.
Other journalistic information and activity can only be the subject of such covert surveillance in certain circumstances. Most importantly it must be carried out under laws which are clear, accessible and foreseeable in their effects. These laws must give journalists an adequate indication of how these discretionary surveillance powers might be used against them. They also have to provide protection against arbitrary or disproportionate surveillance measures.
However, the UK law that governs this area, the Regulation of Investigatory Powers Act 2000 (RIPA), is outdated, and does not comply with those rules, Millar believes. So this latest attack on GCHQ’s mass surveillance is not just an empty gesture to express annoyance: if the ECHR rules in favor of The Bureau of Investigative Journalism, the British government will be required to review the regulations around the mass collection of communications data — to update the anachronistic RIPA, in other words.
The good news is that the ECHR has already indicated that it will accept this new case. That offers the hope that the court may be preparing to put it in the fast track along with a similar one that calls into question the UK’s compliance with Article 8 of the European Convention on Human Rights. Even if the pace of Snowden’s revelations has slowed somewhat in recent months, the impact of earlier leaks continues to grow.